Duval County Circuit Judge Mallory Cooper's order denying the motion to dismiss the Cristian Fernandez murder indictment was handed to reporters outside the judges' offices, where this plaque hangs honoring Cooper and Judge Lance Day for their work on the new county courthouse.

A judge Tuesday denied dismissing the first-degree murder indictment against Jacksonville teen Cristian Fernandez, rejecting an argument that a U.S. Supreme Court ruling in another juvenile murder case rendered the indictment unconstitutional and impossible under state law.

Fernandez, 13, remains in custody pending his March 4 trial in the death of 2-year-old half brother, David Galarraga. Circuit Judge Mallory Cooper will hold the next court hearing Nov. 29.

Cooper’s decision rejects a defense argument that deciding a sentence for Fernandez, if convicted, was not possible under state law after the Supreme Court ruled in June that sentencing juveniles to a mandatory term of life without parole for murder is cruel and unusual punishment.

The defense argued that Fernandez, who faced the same sentence before the Miller vs. Alabama decision, was being denied his rights under the due process clause of the U.S. Constitution. The attorneys said they are unable to decide how to proceed, including the pursuit of a plea bargain, because they are unaware what punishment Fernandez could face.

But Cooper called that argument “premature” because Fernandez has not been convicted and knew about the possible sentence through the indictment.

A grand jury indicted Fernandez, then 12, well before the Supreme Court ruling in Miller that prohibits the mandatory penalty. But Cooper said Fernandez could still face the possibility of life without parole under Miller and state law. The defense argued that the Miller decision nixed such a sentence because the punishment provided for juveniles by the Legislature in a first-degree murder case doesn’t include non-mandatory life without parole.

Cooper did not address the prosecution’s counter that the sentencing range set by the Legislature before it increased the penalty to mandatory life could be revived. The pre-1994 range for first-degree murder is 25 years to life in prison.

Cooper wrote that the Miller decision found that a judge must consider the totality of the circumstances, including age and how children are different, before imposing a penalty. She said the decision only prohibits a mandatory sentence of life without parole for a juvenile convicted of first-degree murder.

“Therefore, even in light of Miller, the potential maximum sentence a juvenile could constitutionally face if convicted of first-degree murder is still that of incarceration for life without parole,” Cooper wrote.

Defense attorney Hank Coxe said in a prepared statement that Fernandez’s team understands Cooper’s ruling.

“It will not distract us from our commitment to fight the continued prosecution of this 12-year-old child for first degree murder as an adult, exposing him to a life in prison without parole,” Coxe said.

A statement from the State Attorney’s Office said it will continue to move forward in the case but declined further comment.

University of Miami Law Professor Tamara Lave, who has been following the case for months, said Cooper ruled correctly when she said it was premature for the defense to argue the due process issue. But Lave also said she was puzzled by Cooper’s suggestion of sentence that the defense has argued would have to be determined by the Legislature.

“I believe the judge does not have the right to rewrite the state statute,” Lave said.

Fernandez is accused of slamming David into a bookshelf while their mother was out of their apartment. The mother, Biannela Susana, has pleaded guilty to aggravated manslaughter and is listed as a witness against Fernandez. Prosecutors accused her of neglecting David, including failing to get him medical attention for eight hours.

An unrelated sexual battery case against Fernandez involving another half brother was dropped by prosecutors earlier this month. They cited a lack of physical evidence and witnesses as factors.

Mutt - I think you missed the point. No children under 18 should be charged as an adult period. It is very cynical and hypocritical for adults to charge children as adults when children have no adult rights. This is why we have the juvenile court system.

The 14 year old age limit is in other countries which their laws say that children 14 and under cannot be imputed (charged) with any crime because of their age.

At 12 years old is plainly ridiculous to pretend that the child is an adult in this country or anywhere else.

So Morris: is 14 the number, you have never made this clear.
So the 15 yr old bus shooter is fair game for prosecutors.
A 13 year old with clear anti-social personality disordered is unleashed on the public at age 21?

You see - you are the one who is giving blanket amnesty to anyone under age ....... What?
I believe case by case is different.
There are absolutely some 12 yr olds who are lost causes and 16 yr olds who are not.
CF may or may not be.
Let the justice system work.

Charging children as adults is a bad and questionable practice. It is well documented that the child brain does not develop until about 20 years old or later. A child at age 11-12 is just a child.

To pretend that an 11-12 year old is an adult is simply inconceivable and an irrational way of thinking. Do some research and you will find that no other place in the world charges children as adults. Most countries have laws exempting children under 14 from being charged at all. No countries will charge a 12 year old as an adult. Jacksonville is alone in the world on this. How is it possible that out of 7 billion people Jacksonville is the only exemption?

Will Jacksonville charge next a 7 year old as an adult? Why not charge a 3 year old as an adult. In fact, why don't we abolish the juvenile courts and decide from now on that there are will be no more children under the law. All from the time they are born will be considered adults.

Children are not small adults but there are lots of adults who are big children with undeveloped forebrains and poor impulse control.
Many of those are criminals but they are innocent and not responsible.
Of course no one can ever predict this based on childhood behavior or juvenile criminal acts as that is legally wiped clean at age 21.
We will never be able to predict or prevent criminal behavior because all children are innocent no matter what they do!